Citation Nr: 1821973 Decision Date: 04/13/18 Archive Date: 04/25/18 DOCKET NO. 14-34 322 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an evaluation in excess of 10 percent for anterior cruciate ligament rupture of the right knee (hereinafter right knee disability). 2. Entitlement to an initial evaluation in excess of 10 percent for a left clavicle fracture. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Hendricks, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1983 to April 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2011 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned in January 2017. The Board has taken jurisdiction over a claim for TDIU at this time in order to comport with the holding in Rice v. Shinseki, 22 Vet. App. 447 (2009). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND In a January 2017 letter, a private physician, Dr. D.S. stated that the Veteran had received treatment for his right knee disability at the Brain and Spine Center. Additionally, the Veteran reported that he receives continuing treatment for his right knee and left clavicle disabilities at the Pensacola VA Medical Center, to include at the Pensacola Joint Ambulatory Care Center. He specifically indicated in an October 2012 statement that he received a MRI of his right knee at this facility. However, the claims file only currently contains treatment records from the Veteran's private physician, Dr. D.S., for his back condition, and it does not appear the RO has attempted to obtain any treatment records for the Veteran's right knee from this facility. Further, the claims file does not contain any VA treatment records from the Pensacola VA Medical Center, or the Veteran's MRI of his right knee, and it also does not appear that RO has attempted to obtain these records. Thus, it appears there are outstanding VA and private treatment records, and a remand is necessary in order to attempt to obtain those records, and any other outstanding VA or private treatment records. See 38 U.S.C. § 5103A (b), (c); 38 C.F.R. § 3.159 (b); see also Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. 2016) (where the Veteran "sufficiently identifies" other VA medical records that he or she desires to be obtained, VA must also seek those records even if they do not appear potentially relevant based upon the available information); Bell v. Derwinski, 2 Vet. App. 611 (1992). Further, at the January 2017 Board hearing, the Veteran asserted his right knee and left clavicle disabilities had worsened since the November 2011 examinations. Moreover, in a recent holding, the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 4.59 requires that VA joint examinations must, where possible, include range of motion results for pain on both active and passive motion, in weightbearing and non-weightbearing, and if possible, with the range of the opposite undamaged joint where applicable. Correia v. McDonald, 28 Vet. App. 158 (2016). The Board notes that the Veteran's last VA examinations in November 2011 of his right knee and left clavicle disabilities did not include the range of motion testing results required by Correia. Consequently, based on the above, the Board finds that a remand is necessary in order to schedule the Veteran for new VA examinations that adequately address the current severity of the Veteran's right knee and left clavical disabilities, as well as comport with the requirements of Correia. See 38 C.F.R. § 4.59, Correia, supra; Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Board also notes the Court recently issued an opinion addressing whether a VA examiner is permitted to decline to offer an estimate as to additional functional loss during flare-ups if the veteran is not undergoing a flare-up at the time of the examination. In Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), the Court held that the Board may accept a VA examiner's assertion that he or she cannot offer such an opinion without resort to speculation only after it determines that the examiner's conclusion is not based on the absence of procurable information or on a particular examiner's shortcomings or general aversion to offering an opinion on issues not directly observed. It must be clear that such an opinion is not procurable based on a lack of knowledge among the "medical community at large" and not merely on a lack of expertise, insufficient information, or unprocured testing on the part of the specific examiner. Accordingly, in directing the needed new VA examinations in this case, the Board shall also present instructions to ensure compliance with the recent holding in Sharp. Finally, respecting the Veteran's TDIU claim, the Board must also remand that claim as it is intertwined with the above remanded claims. See Henderson v. West, 12 Vet. App. 11, 20 (1998); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Nevertheless, on remand, the AOJ should fully develop the TDIU claim, to include providing the Veteran with the appropriate notice and obtaining the appropriate documentation, to include a VA Form 21-8940, from the Veteran, respecting that claim. Accordingly, the case is REMANDED for the following action: 1. Obtain any and all VA treatment records from the Panama City and Pensacola VA Medical Centers, to include the Pensacola Joint Ambulatory Care Center, or any other VA medical facility that may have treated the Veteran, and associate those documents with the claims file. 2. After securing the necessary releases, attempt to obtain any outstanding treatment records from Dr. D.S. at the Brain and Spine Center, or any other outstanding private treatment records for the Veteran's right knee and left clavicle disabilities. If any identified records cannot be obtained and further attempts would be futile, such should be noted in the claims file and the Veteran should be notified so that he can make an attempt to obtain those records on his own behalf. 3. Schedule the Veteran for a VA examination to determine the current severity of his right knee disability. The examiner should record the results of range of motion testing for pain (1) on BOTH active and passive motion AND (2) in weightbearing and non-weightbearing. If the examiner is unable to conduct the required testing he or she should clearly explain why that is so. The examiner should also express an opinion concerning whether there would be additional functional impairment on repeated use or during flare-ups (if flare-ups are reported by the Veteran). The examiner should assess or estimate the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss. If the Veteran is not having a flare-up when examined, the examiner should determine whether he or she can estimate, given the Veteran's description of symptoms, what his range of motion would be on flare-up. If it is not feasible to offer such an opinion to any degree of medical certainty without resort to speculation, the examiner must provide a specific explanation for why this is so. If such an opinion is not procurable based on a lack of knowledge, then the inability to offer such an opinion must be based on a lack of knowledge among the "medical community at large," and not merely a lack of expertise, insufficient information, or inability to observe the Veteran during a flare-up. All findings should be reported in detail and all opinions must be accompanied by a clear rationale. 4. Schedule the Veteran for a VA examination to determine the current severity of his left clavicle fracture. The examiner should record the results of range of motion testing for pain (1) on BOTH active and passive motion AND (2) in weightbearing and non-weightbearing. If the examiner is unable to conduct the required testing he or she should clearly explain why that is so. The examiner should also express an opinion concerning whether there would be additional functional impairment on repeated use or during flare-ups (if flare-ups are reported by the Veteran). The examiner should assess or estimate the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss. If the Veteran is not having a flare-up when examined, the examiner should determine whether he or she can estimate, given the Veteran's description of symptoms, what his range of motion would be on flare-up. If it is not feasible to offer such an opinion to any degree of medical certainty without resort to speculation, the examiner must provide a specific explanation for why this is so. If such an opinion is not procurable based on a lack of knowledge, then the inability to offer such an opinion must be based on a lack of knowledge among the "medical community at large," and not merely a lack of expertise, insufficient information, or inability to observe the Veteran during a flare-up. All findings should be reported in detail and all opinions must be accompanied by a clear rationale. 5. The AOJ should properly complete development of the TDIU claim, to include providing the Veteran with VCAA notice and a VA Form 21-8940, as appropriate. 6. If the benefits sought remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto before the case is returned to the Board. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ M. HYLAND Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017).